Court holds that all candidates can challenge rules governing vote counting in elections

In a surprisingly sweeping opinion issued Wednesday, a five-justice majority in Bost v. Illinois State Board of Elections held that a federal congressional candidate had a legal right to sue, known as standing, in federal court to challenge an Illinois law that allows mail-in ballots postmarked by Election Day to be counted as many as 14 days later. Reversing lower federal court rulings that denied Rep. Michael Bost (R-Ill.) standing to sue, the majority opinion by Chief Justice John Roberts adopted a categorical rule upholding candidate standing based on a candidate’s inherent interest in “the integrity of the election” and the “democratic process.” 

The vote was 7-2 in favor of Bost, with Justice Amy Coney Barrett, joined by Justice Elena Kagan, agreeing with the result that the majority reached but not its reasoning. Justice Ketanji Brown Jackson, joined in dissent by Justice Sonia Sotomayor, would have affirmed the lower courts’ denial of standing.

Under the “case or controversy” clause of Article III of the Constitution, plaintiffs in federal court only have standing to sue if they properly allege that the challenged action or law causes them “concrete and particularized injury in fact.” The Supreme Court has generally interpreted that rule to deny standing based merely on some category that the plaintiff falls into, such as “citizen standing” or “taxpayer standing.” Instead, the court has usually required plaintiffs to allege that that they have suffered some kind of judicially cognizable real-world harm that sets them apart from the broad run of society. 

Adopting the principal argument advanced by Bost, the majority stated, “Candidates have a concrete and particularized interest in the rules that govern the counting of votes in their elections, regardless whether those rules harm their electoral prospects or increase the cost of their campaigns.” That candidate interest in protecting the integrity and fairness of the electoral process “is in no sense ‘common to all members of the public,’” Roberts asserted. Although the public also has an interest in the integrity of elections, the candidate’s interest “differs in kind.”  An unfair election “plainly affects those who compete for the support of the people in a different way than it affects the people who lend their support,” Roberts stated.

The eventual triumph of Bost’s categorical candidate standing argument was surprising because none of the justices at oral argument had openly agreed; indeed, Kagan confidently declared that it could not be correct. “It’s not enough just to walk in and say: Hi, I’m a candidate and I’m suing,” she said at argument. Instead, she said, the candidate must show some kind of substantial risk that the new (challenged) rule would put the candidate at some kind of disadvantage vis-à-vis the old rule. 

Justice Neil Gorsuch then pointedly asked former U.S. Solicitor General Paul Clement, who represented Bost, whether Bost could satisfy the more specific standard that Kagan had just articulated, creating the impression that Gorsuch agreed with it. But Gorsuch ended up voting for the majority’s categorical rule.

The majority may have been influenced by remedial concerns similar to those voiced by Justice Brett Kavanaugh during oral argument. There, Kavanaugh had remarked that an undesirable effect of denying candidates standing to challenge vote-counting rules before Election Day would put courts on the spot afterward, when someone already appeared to have won and others to have lost. 

In his opinion for the court, Roberts criticized the dissent’s argument that candidates should not be deemed to have standing unless they properly alleged that the challenged rule likely made the difference between winning and losing. The problem, he said, is that a court probably can’t tell whether a rule affected the ultimate result until after the votes are counted pursuant to that rule. Roberts quoted from an opinion written by the late Justice Antonin Scalia while concurring in the grant of a stay during Bush v. Gore in 2000: “Count first, and rule upon legality afterwards, is not a recipe for producing election results that have the public acceptance democratic stability requires.”

In her concurring opinion in Bost, Barrett articulated a middle position between the majority’s rule that all candidates automatically have standing to challenge vote-counting procedures and the dissent’s proposed rule that candidates should have to demonstrate a likelihood that the challenged procedure would make the difference between winning and losing. Barrett, who was a prominent scholar of Article III as a law professor, would have held for Bost on the ground that he suffered a “pocketbook injury” from having to spend more money on poll observers and other campaign staff because of the additional 14 days following the close of the polls.

“Pocketbook harm is a traditional Article III injury,” Barrett stated. “That is so not only when a law directly imposes costs on a plaintiff, but also when a plaintiff ‘reasonably incurs costs to mitigate or avoid’ the ‘substantial risk’ of a harm caused by a statute,” she noted. Barrett criticized the majority’s approach as an unnecessary departure from the court’s usual insistence upon specificity and concreteness in an Article III injury analysis. “By holding that a candidate always has an interest in challenging vote-counting rules, even if those rules do not impose a competitive disadvantage on him, the Court today relieves candidates from having to show any real harm.” Why should elections be treated differently from everything else for purposes of standing analysis? she asked. “Elections are important,” Barrett wrote, “but so are many things in life. We have always held candidates to the same standards as any other litigant.”

In her dissent, Jackson echoed Barrett’s characterization of the majority opinion as a departure from past practice treating candidates like other litigants. Going further, she argued that the majority’s new category of candidate standing could not be meaningfully distinguished from the claims of “citizen” and “taxpayer” standing that the court has almost always rejected. “Anyone and everyone who is governed by law is similarly harmed by any departure from the law’s requirements,” Jackson stated. “[T]his Court has repeatedly instructed that litigants ‘may not sue based only on an asserted right to have the Government act in accordance with law.’”

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https://www.scotusblog.com/2026/01/court-holds-that-all-candidates-can-challenge-rules-governing-vote-counting-in-elections/ January 15, 2026 at 08:30AM